BDF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 174
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BDF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 174
File number(s): SYG 759 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 22 October 2021 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant a Protection visa – whether Tribunal failed to consider claim or material that was before it – application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Sch 2, Pt 2
Migration Act 1958 (Cth), ss 5J(4), 5J(5), 476, 501(3A), 501CA(3)(b)
Migration Regulations 1994 (Cth), reg 2.52(2)(b)
Mental Health Act 2007 (NSW), s 33
Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8
Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Division: Division 2 General Federal Law Number of paragraphs: 22 Date of hearing: 13 October 2021 Place: Sydney Counsel for the Applicant: Mr L Karp, by video Solicitor for the Applicant: My.T. Nguyen Solicitors Counsel for the First Respondent: Mr T Reilly, by telephone Solicitor for the First Respondent: Clayton Utz ORDERS
SYG 759 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BDF21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,853.
THE COURT NOTES THAT:
3.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The question that arises on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal), in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa), failed to consider a claim the applicant submits arose from the material that was before the Tribunal or, in the alternative, failed to consider what the applicant submits was significant information before the Tribunal.
BACKGROUND
The applicant is a citizen of Vietnam. He first arrived in Australia in 2012 as a dependent child of his mother who entered Australia holding a partner visa. In June 2013 the applicant was granted a Class BC Subclass 100 Partner visa (BC visa). The applicant returned to Vietnam in 2015 for one month to visit his grandparents. The applicant also returned to Vietnam in 2017 for one month.
The applicant became addicted to heroin, although the evidence does not reveal when this occurred. In 2017 the applicant was admitted to the mental health unit of a hospital under s 33 of the Mental Health Act 2007 (NSW) after he burnt down a granny flat. The applicant was subsequently diagnosed with schizoaffective disorder with a background history of substance abuse.[1] He was discharged and placed into a Temporary Accommodation Program.
[1] CB45
The applicant was convicted of a number of offences that attracted custodial sentences. That led to the Minister deciding on 24 March 2020 to cancel the applicant’s BC visa pursuant to s 501(3A) of the Act. The applicant applied to have that decision revoked, but he made that application outside the time prescribed by reg 2.52(2)(b) of the Migration Regulations 1994 (Cth) for the purposes of s 501CA(3)(b) of the Act.
CLAIMS FOR PROTECTION
On 10 June 2020 the applicant applied for a Protection visa. In his form of application the applicant stated as follows:[2]
Applicant came to Australia as a dependent child of his mother's partner visa. The applicant left Australia for Vietnam in August 2017. When in Vietnam, he provided his views regarding Catholicism and his political opinion about the Vietnamese government being a cruel communist nation. He suffers from mental illness and is extremely vocal about his views. He was verbally abused and his life was threatened by the Authorities and members of the community. Police were also called upon where he was threatened to be imprisoned for sharing his views.
He was forced to remain in hiding for a majority of the trip for fear of his life.
He cannot return to Vietnam for fear of his life as he is scared of the persecution. He fears he would be killed.
The applicant suffered serious harm while he was in Vietnam in 2017 for sharing his political and religious views about becoming a catholic [sic]. His life was being threatened by the Authorities and the public. He fears of [sic] being imprisoned for sharing his religious views.
His attempts to try and convert people to become catholic and his opinion on the Vietnamese government were shut down abruptly.
He feared of [sic] leaving his home as the threats came from the Authorities and the public at large
Also, the police officers were threatening to arrest the applicant.
Should he return back to his country, his life would be in jeopardy and he may run the risk of being physically harmed by police and members of the public.
[2] CB18
The applicant provided no additional information to the delegate, but the applicant did so at the hearing before the Tribunal.[3] This included evidence that about 3 years before the hearing the applicant developed a mental problem; he burned his property, and was taken to hospital; he received medication by injection every four weeks, although he could not identify the medication he had taken; the applicant had been convicted of some criminal offences, including possession of a prohibited drug (heroin); the applicant had been using drugs for around 4 years; and, save for a period of approximately 2 months the applicant had not received any regular treatment for his addiction. The applicant claimed, among other things, that his mental health will pose a danger for him if he returns to Vietnam.
[3] CB159-160, [17]-[35]
TRIBUNAL’S REASONS
The Tribunal considered the applicant made claims based on his claimed political and religious beliefs; his suffering from schizophrenia; societal discrimination based on his mental illness; his criminal convictions; the lack of emotional and financial support; and being a failed asylum seeker. The Tribunal did not accept these claims, and the applicant does not contend the Tribunal made any jurisdictional error in not accepting them. The ground on which the applicant relies relates to the manner in which the Tribunal dealt with the applicant’s drug use, and in particular to the risk the applicant would face in Vietnam if the applicant were to resume his drug addiction.
In relation to that subject, the Tribunal accepted the applicant had been addicted to heroin; and that he is no longer addicted to that drug.[4] The Tribunal also accepted, however, it is possible that, on his return to Vietnam, the applicant may become addicted to drugs again.[5] The Tribunal found that if that were to occur, treatment would be available to the applicant, either at compulsory treatment centres, known as “06 Centres”, or at community based voluntary treatment centres. The Tribunal noted that in 2013 the Vietnamese government declared its intention to reduce the number of 06 Centres, and to increase resources for community based voluntary treatment centres; and that the Vietnamese government has scaled up voluntary and diversified services for drug dependence treatment and care at the provincial level.[6] Given these findings, the Tribunal concluded that, any harm the applicant may suffer as a result of his (renewed) use of drugs on his return to Vietnam would lack the systematic and discriminatory conduct necessary for it to be considered persecution for the purposes of s 5J(4) of the Act; and, for that reason, the Tribunal found there is no real chance the applicant will be seriously harmed because of his drug addiction, if he is returned to Vietnam.[7]
[4] CB173, [95]
[5] CB174, [97]
[6] CB173-174, [96]-[97]
[7] CB174, [97]
In making these findings, the Tribunal relied on country information which the Tribunal found supported the following findings:
(a)The Vietnamese government in the past engaged in policies designed to suppress the consumption and trade of drugs, and that it was reported that these policies at times contravened international human rights law. These policies included the incarceration of drug users in compulsory treatment centres, and the stigmatization and abuse of drug users by the police.[8]
(b)Since the 1990’s the Vietnamese government has switched to policies that reduce the level of harm to drug users in an attempt to reduce the level of needle sharing.[9] As a result, it has been reported that the Vietnamese government transformed its drugs policy by incorporating harm-reduction approaches.[10]
(c)In 2013 the Vietnamese government declared its intention to reduce the number of 06 Centres, and to increase resources for community based voluntary treatment centres.[11]
(d)Although the Vietnamese government maintains compulsory treatment for drug dependence, it has scaled up voluntary and diversified services for drug dependence treatment and care at the provincial level,[12] noting that methadone maintenance treatment has proven to be effective in treating opioid dependence, with such treatment being provided primarily by public clinics.[13]
[8] CB173, [96], referring to an article published in 2016 by James Windle titled “A Slow March from Social Evil to Harm Reduction: Drugs and Drug Policy in Vietnam” (Windle Article)
[9] CB173, [96], referring to the Windle Article
[10] CB173-174, [96], referring to the Windle Article
[11] CB174, [96], referring to various reports, but not the Windle Article
[12] CB174, [96] referring to a report from the United Nations Office on Drugs and Crime
[13] CB174, [96] referring to an article from the Harm Reduction Journal
GROUND OF APPLICATION
The applicant relies on the following ground contained in the amended application (errors in original):
The Tribunal erred in that it failed to consider a claim clearly arising on the information and evidence before it, to the effect that if the applicant were to return to drugs of addiction upon return to Vietnam he may face harassment by the police and forced incarceration in what are effectively labour camps.
Particulars
(a)That claim arose from information in an article . . . by Dr James Windle of the University of East London entitled, “A Slow March from Social Evil to Harm Reduction: Drugs and Drug Policy in Vietnam”.
(b)Aspects of that article were relied on by the Tribunal at paragraph [96] of its reasons for decision.
(c)The claim also arose from para 2.29 of a DFAT report, parts of which were annexed to the Tribunal decision.
In the applicant’s counsel’s written submissions, it is submitted the Tribunal’s summary of Dr Windle’s article (Windle Article) is misleading because it ignores a clear focus of the article, being what counsel submits is clearly persecutory conduct by Vietnamese authorities and police directed towards those addicted to drugs. Counsel’s written submissions also refer to paragraph 2.29 of the DFAT Report that is annexed to the Tribunal’s reasons which, counsel submits, also refers to police harassment and forced incarceration of drug addicts in what are effectively labour camps. During oral address counsel for the applicant identified the following passages from the Windle Article:[14]
06 Centres have been heavily criticised as ineffective and contrary to human rights norms. Inmates are widely reported to be beaten with sticks and electric batons for violating rules or attempting to escape. The homeless are often arrested and sent to 06 Centres to fill police quotas. Since clinical care is poor and treatment is not based on best practices and scientific evidence, relapse rates are high. In fact, 06 Centres strongly resemble labor camps: “treatment” is centred on “labor therapy”, such as processing of cashew nuts or sewing cloths, in conjunction with detoxification, performance of military drills, and chanting of anti-drug slogans. Furthermore, post-release support services are limited. . . . [15]
Furthermore, those who have been imprisoned in 06 Centres often refuse to access any form of harm reduction services as doing so would advertise to the police that they have relapsed, which can result in prison or a further term in an 06 Centre.[16]
. . . .
But despite the expanding implementation of these effective programs, as well as above-discussed improvements in national drug laws and regulations, significant challenges and barriers to effective harm reduction and drug policy remain. In addition to the continuation of the 06 Centres, uninformed and discriminatory attitudes of medical professionals in Vietnam and abusive police practices are among the most detrimental. The prevalent police culture views forced detoxification as the only means of reducing the threat that drug users pose to society. Such attitudes are exacerbated by a lack of police training about the effectiveness of harm reduction. Indeed, local police use harm reduction programs as mechanisms to identify drug users. Equally counterproductive, they tend to harass and even arrest harm-reduction workers.[17]
[14] The Windle Article is annexed to the affidavit of M Y Tran 17.09.2021
[15] Windle Article, page 6
[16] Windle Article, page 7
[17] Windle Article, page 8
Counsel for the applicant also referred to the following passages from the DFAT Report:
In-country sources in Vietnam report that drug users typically spend 12 months in 06 centres, though some remain for up to four years for post-treatment management. Limited information is available about the living and working conditions in 06 centres, as no external monitoring is permitted by authorities. In-country sources report, however, that conditions in 06 centres are worse than those in prison. Evidence indicates that compulsory detention of drug users in Vietnam is frequently ineffective, forced labour is used as a form of ‘treatment’, post-release services are limited, and the stigma of being a 06 centre inmate often impedes reintegration into communities in terms of employment and accessing healthcare. In additional to the 06 centres, treatment is also provided through community or home-based programs, including methadone clinics for heroin users in some districts and communes, which require co-payment by the user.
Counsel for the applicant submitted that, although the Tribunal referred to harsh and oppressive conditions having existed in the past, the Tribunal did not engage with the passages from the Windle Article or the DFAT Report counsel for the applicant identified.
The Minister, in his counsel’s written submissions, submitted the claim based on harassment and forced incarceration did not arise from the material that was before the Tribunal. In the alternative, the Minister submitted the Tribunal did consider the claim. The Minister submitted the Tribunal did not overlook the possibility the applicant could be subjected to police harassment or to being detained if he resumed his drug addiction. The Minister submitted that such harm would not satisfy s 5J(4) of the Act.
Determination
The determination of the ground on which the applicant relies does not turn on whether the information contained in the Windle Article or in the DFAT Report with which the applicant submits the Tribunal did not engage constitutes a claim (material in question). As Robertson J noted in Minister for Immigration and Citizenship v SZRKT, “there is no clear distinction in each case between claims and evidence”:[18]
The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself.
[18] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, at [111]
The questions that arise are whether the Tribunal considered the material in question and, if so, whether the Tribunal actively engaged with the material in question in the sense of giving that material “proper, genuine and realistic consideration” [19] in relation to the question the Tribunal in fact determined; and that was whether, given the possibility the applicant could become a drug addict on his return to Vietnam, there is a real risk that the applicant will suffer “serious harm” within the meaning of s 5J(4) and s 5J(5) of the Act.
[19] Bondelmonte v Bondelmonte [2017] HCA 8, at [43]
I am satisfied the Tribunal did consider the material in question. The Tribunal referred to the 06 Centres; and the inference is available to be drawn, and I find, that the Tribunal obtained its information about the 06 Centres from the material in question. It is also reasonably open to infer, and I find, that in acquainting itself with the 06 Centres from the material in question, the Tribunal became acquainted with the features of the 06 Centres as revealed in the operation of the centres; and that is because those features formed part of the 06 Centres described in the material in question.
It is true the Tribunal did not specifically refer to that part of the material in question that described the attitudes and behaviour of police towards persons facing drug addiction and towards those who attempt to support them. I am not prepared to find, however, the Tribunal did not do so because it failed to acquaint itself with, and consider, those parts of the material in question. First, the references in the material in question to police attitudes and behaviour, to which the Tribunal did not refer, appear together with information to which the Tribunal did refer. The likelihood, therefore, is that the Tribunal read the information. Second, and more significantly, the Tribunal accepted the applicant would be at risk of harm if, on his return to Vietnam, the applicant were to become a drug addict again. It is reasonable to infer, and I find, that the harm the Tribunal had in mind the applicant would be at risk of suffering if, on his return, he were to resume his drug addiction, is the harm the material in question identified occurs to drug users who are detained in 06 Centres, and who may otherwise be exposed to the police harassment and behaviour revealed in the material in question (Harm). The Tribunal, however, was not satisfied this risk of Harm fell within s 5J(4) of the Act; and that is because the Tribunal was not satisfied that the Harm would arise from conduct that is systematic and discriminatory.
I am also not satisfied the Tribunal did not actively engage with the material in question. I am satisfied it did actively engage with that material. As I have already noted, the Tribunal referred to the material in question; and the Tribunal accepted the applicant would be exposed to the risk of Harm if he were to resume his drug addiction after he returns to Vietnam. The Tribunal, however, did not stop there; it considered, and it actively considered, whether the risk of Harm would satisfy s 5J(4) of the Act. Although the Tribunal accepted the applicant would be exposed to the risk of Harm, the Tribunal was not satisfied the risk of Harm would be persecution that would involve serious systematic and discriminatory conduct. The basis of that finding is the Tribunal’s acceptance of country information it found revealed two classes of responses to drug addiction in Vietnam, one of which involved the 06 Centres and police harassment, and hence a class of response that would give rise to the risk of Harm, and the other which would not give rise to the risk of Harm; and the absence of any evidence that satisfied or could satisfy the Tribunal that the two classes of responses, and in particular that class of response that would give rise to the risk of Harm, were applied systematically and discriminatorily to persons suffering from drug addiction.
In his oral submissions counsel for the applicant submitted that the Minister’s reliance on what was said at paragraphs 74 and 75 of Minister for Immigration and Border Protection v WZAPN is misplaced because the material in question showed there was discriminatory conduct against drug users, and the Tribunal ignored or did not engage with this aspect of the material in question.[20] I disagree. As I have already noted, the material in question, together with the other material to which the Tribunal referred, revealed to the Tribunal two classes of responses to drug addiction in Vietnam, one of which would give, and the other of which would not give, rise to the risk of Harm; and the Tribunal was not satisfied that the class of response that would give rise to the risk of Harm has been or would be applied systematically and discriminatorily to persons suffering from drug addiction.
[20] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610
DISPOSITION AND COSTS
I propose to order that the application be dismissed. Counsel for the parties accepted that costs should follow the event. The Minister claims costs set in the amount provided for by Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 (Cth), namely $7,853. I am satisfied costs should follow the event, and the Minister’s costs should be set in the amount of $7,853. I propose to so order.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Dated: 22 October 2021
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